A proposal on Men’s Rea for Sexual Abuse: Case for defining the Acceptable Risk

Abstract

This study will be on Mens Rea for Sexual Abuse: Case for defining the
Acceptable Risk. The persistence of strict criminal liability for child sexual
abuse is attributable, at least in part, to the shortcomings of the existing
alternatives, namely, the recklessness and criminal negligence standards.
These two standards require juries to define the acceptable level of risk on
a case-by-case basis. Juries are ill-equipped to make this calculation in
sexual abuse cases, however, and their efforts to do so almost invariably
are skewed by evidence of the victim's unchastity. This Article first explores
the shortcomings of the recklessness and criminal negligence standards in
this setting, and then attempts to develop a viable alternative. Under the
proposed alternative, the legislature, not the jury, would define the
acceptable risk of sexual imposition. It would calculate this invariant
probability threshold in much the same way that juries calculate the
acceptable risk in recklessness and criminal negligence cases-by assigning
values to the gravity of the potential harm and to the social utility of the
conduct. Under this scheme, the jury would be responsible only for
deciding whether the risk of sexual imposition exceeded this invariant
probability threshold in the defendant's case

Chapter one
Introduction

1.1 Background of the study

The persistence of strict liability is for child sexual abuse is attributable, at
least in part, to the shortcomings of the existing alternatives, namely the
recklessness and criminal negligence standards. These two standards
require the juries to define the acceptable risk on a case-bycase basis.
Juries are ill-equipped to make this calculation in sexual abuse cases,
however and their efforts to do so almost invariably are skewed by
evidence of the victim’s unchasteness. While rape is defined differently in
different jurisdictions, it usually encompasses sexual intercourse without
consent accomplished by force or fear. Sexual assault covers physical or
sexual violence against a person, whether male or female, which violates
the person’s bodily integrity and sexual anatomy. Although sexual assault
can be committed against both sexes, women and girls tend to suffer most
from such offences. In Ghana, the term sexual offences is used in Chapter
Six of the Criminal Offences Act, 1960 (Act 29) and it covers “any unlawful
dealing with a female by way of rape, defilement and in the case of
unnatural carnal knowledge, the victim could be either a man or a woman,

indecent(man or woman) and again incest”. At the heart of most sexual
offences in Ghana is the issue of consent; without consent sexual acts or
contacts are unlawful. The legal system’s treatment of consent in Ghana
reflects assumptions about women and how they do or do not consent to
sexual acts. The burden on the prosecution to prove absence of consent on
the part of a female, in a rape case for instance, is often met with
assumptions and expectations which do not necessarily operate in this
case. Thus, assumptions such as that “when there’s no consent, there
should be evidence of force or violence which is often in the form of either
biting or scratching of the hands or even the male organ of the accused
person and expectations that, “when there was an opportunity to report,
the victim did so punctually” are often at play. Thus Ghanaian women who
experience sexual violence often face significant challenges when they seek
justice through the legal system. This goes to shows that currently, the law
against rape is in shambles. It has the wrong focus, casts its net both too
widely and too narrowly, and yield inconsistent results. The common law
definition “canal knowledge of a woman by force and without her consent”
has impacted many current statutes, codifying and exacerbating the
problems above. First, rape law’s focus often ignores the culpable mental

state, or mens rea of the defendant, in favour of examining whether the
prosecuting witness consented to the act. This can, and often still does,
result in the practice of scrutinizing the prosecuting witness’s sexual
history. This practice has no logical relevance to the guilt or innocence of
the accused. Several relevant mental states may arise in understanding
rape. First, the defendant has a mental attitude about his act of having
intercourse. Usually, they purposefully, knowingly, recklessly, or negligently
have intercourse. Circumstances in which someone accused of rape has
intercourse other than purposefully are surely rare, if they exist at all.
Thus, while a defendant’s mental attitude about his act of having
intercourse could be described as part of the mens rea of rape, it is not
particularly relevant mental state. The mens rea of rape usually refers
instead to the defendant’s mental attitude toward the element of non-
consent. Thus, what one cares about is whether the defendant, who had
intercourse without consent, wanted to have sex without consent, knew he
did not have consent, or was reckless or negligent as to whether he had
the complainant’s consent. When mens rea of rape is referred to, it is
meant to refer to whichever of these is required to prove a charge of rape.
Statement of the problem

So far, the courts have proven resistant to this argument, perhaps with
good reason. The obvious alternatives to strict liability are the recklessness
and criminal negligence standards, at least in the many states that have
adopted the Model Penal Code's approach to culpability. But recklessness
and criminal negligence are problematic in this setting. The trouble is that
both of these standards would require jurors to calculate the acceptable
level of risk on a case-by-case basis. Both standards, in other words, would
require jurors to decide-based primarily on the jurors' own estimates of the
gravity of the harm that accompanies sexual abuse-what probability a
reasonable person would be willing to accept that his or her partner is
underage. Most jurors are ill-equipped to make this calculation. Worse,
their efforts to make this calculation almost inevitably will be skewed by
evidence of the victim's unchastity. Based on this the researcher wants to
investigate mens Rea for Sexual Abuse: Case for defining the Acceptable
Risk

Objective of the study

The study will assess the following objectives;

1. To examine the shortcomings of the laws regarding rape.

2. It will further explain why none of the criteria of culpability not
recklessness nor criminal negligence nor the general intent will work
in sexual abuse cases.
3. The study will answer the question on whether juror and legislatures
are equipped enough to calculate the acceptable level of risk based
on assessment of both the gravity of the harm that results from
sexual abuse and the general social utility of sexual intercourse
4. To determine what men’s rea of rape is in a case like Sans regret will
be looked at in this research
5. To ascertain the necessity to distinguish between an act of
intercourse without consent (which will be referred to as
nonconsenting throughout this research) and an act of intercourse
with consent that was coerced by use of threat or fear or force
(which I am calling “coerced consent”).
6. To ascertain the answer whether men’s rea is required to establish
rape.

Research question

1. Will the shortcomings of the laws be regarding rape?

2. Are none criteria of culpability not recklessness nor criminal
negligence nor the general intent will work in sexual abuse cases?
3. Are juror and legislatures are equipped enough to calculate the
acceptable level of risk based on assessment of both the gravity of
the harm that results from sexual abuse and the general social utility
of sexual intercourse?
4. what men’s rea of rape is it in a case like Sans regret?
5. Is there distinguish between an act of intercourse without consent
(which will be referred to as nonconsenting throughout this research)
and an act of intercourse with consent that was coerced by use of
threat or fear or force (which I am calling “coerced consent”)?
6. Is men’s rea is required to establish rape?

Research hypotheses

For the successful completion of the study, the following research
hypotheses were formulated by the researcher;

H 0 : there are no significant shortcomings of the laws regarding rape

H 1 : there are shortcomings of the laws regarding rape

H 0 2 : there is no significant culpability not recklessness nor criminal
negligence nor the general intent will work in sexual abuse cases.

H 2 : there is significant culpability not recklessness nor criminal negligence
nor the general intent will work in sexual abuse cases.

H 0 3 : there are no juror and legislatures equipped enough to calculate the
acceptable level of risk based on assessment of both the gravity of the
harm that results from sexual abuse and the general social utility of sexual
intercourse
H 3 : there are juror and legislatures equipped enough to calculate the
acceptable level of risk based on assessment of both the gravity of the
harm that results from sexual abuse and the general social utility of sexual
intercourse

H 0 4 : there is no men’s rea of rape is in a case like Sans regret will be
looked

H 4 : there is men’s rea of rape is in a case like Sans regret will be looked

H 0 5 : there is distinguish between an act of intercourse without consent
(which will be referred to as nonconsenting throughout this research) and

an act of intercourse with consent that was coerced by use of threat or
fear or force (which I am calling “coerced consent”)

H 5 : there is distinguish between an act of intercourse without consent
(which will be referred to as nonconsenting throughout this research) and
an act of intercourse with consent that was coerced by use of threat or
fear or force (which I am calling “coerced consent”)

H 0 6 : men’s rea do not required to establish rape

H 6 : men’s rea required to establish rape
Scope of the study

The scope of the study covers Mens Rea for Sexual Abuse: Case for
defining the Acceptable Risk. The study will be limited to sexual abuse

Limitation of the study

Financial constraint- Insufficient fund tends to impede the efficiency of
the researcher in sourcing for the relevant materials, literature or
information and in the process of data collection (internet, questionnaire
and interview).

Time constraint- The researcher will simultaneously engage in this study
with other academic work. This consequently will cut down on the time
devoted for the research work.
a) AVAILABILITY OF RESEARCH MATERIAL: The research material
available to the researcher is insufficient, thereby limiting the study

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